Loans to sons in power

(a) The senatus consultum Macedonianum and its policy The other piece of legislation dealing with specific dangers resulting from moneylending transactions was passed at the time of either Claudius^[920] or Vespasian.^[921] It was the senatus consultum Macedonianum, named, for once, not after the proposer, but after the person whose scandalous behaviour occasioned it.

"... placere, ne cui, qui filio familias mutuam pecuniam dedisset, ctiam post mortem parentis ems cuius in potestatc fuisset, actio petitioque darctur, ut scirent, qui pessimo excmplo faenerarent nullius posse filii familias bonum nomen expectata patris morte fieri." ^[922]

The enactment provided that the lender who has given money to a son in power should have no action to reclaim his money, even after the death of the latter's father.^[923] It was the legislatorial reaction to an incident which has been described by Theophilus:

"There lived at Rome a person called Macedo. When still under patria potestas, he borrowed money from somebody, hoping that after his father's death he would be able to repay the debt. As time dragged on, the creditor pressed him hard, demanding his debt. Macedo had nothing wherewith to pay (how could he, being alieni iuris?); so he killed his father. The matter was brought before the senate: Macedo suffered the penalty tor patricide, and the senatus consul turn called Macedonianum was made."¹⁴¹'

This story has been challenged more than once: Gerhard von Beseler, the chief interpolation-hunter, has denounced it as a silly Byzantine legend.¹⁴⁶ Theophilus' account has, however, been vindicated most elegantly and convincingly by David Daube,¹⁴⁷ who answered the question "Did Macedo murder his father?" in the affirmative: "It is to be feared that he did." In fact, Theophilus¹ paraphrase provides us with the background against which we can appreciate the true intention of the senatus consultum.

"should often look forward to the father's death as a welcome event: it was the father who stood between the filiusfamilias and his inheritance and freedom, and between the moneylender and an unhampered prosecution ot his claim".¹⁴"

This is exactly the situation in which Macedo found himself. Unfortunately, his father proved long-lived. Having already committed a number of more minor illegalities¹⁵'' (such as possibly embezzling the family's jewels), and thus being conspicuously susceptible to blackmail, Macedo did not seem to have seen any other way ot coping with the demands of his troublesome creditor than to bring his father's life to a premature end. The aim of the senatus consultum, under these circumstances, was to make loans to sons in power as unattractive as possible: which moneylender would still be prepared to make a loan which the law could never assist him to recover? Secondly, even if a moneylender still took the risk, the provisions of the senatus consultum removed any interest the moneylender might have had in the murder of his debtor's father. This crime would no longer improve his position ; neither before nor after the father's death did he have an enforceable claim.¹³¹ The intention of the senatus consultum was therefore not to protect improvident and thoughtless young men from the dangers of leading a sumptuous life on credit: it applied to grey-haired senators ^{[924] [925] and consuls, as long as they were alicni iuris,152 but it did not apply to effervescent teenagers, as long as they were sui iuris.}

(b) The application of the senatus consultum by the Roman jurists

It was with this intention in mind that the senatus consultum Macedonianum was applied. As in the case of the senatus consultum Vellaeanuin, we find the Roman lawyers adopting a purposive or teleological approach in establishing the scope and rational limitations of the enactment.¹⁵⁶ T bus, for instance, we read:

"... si quidem aus causa exceptio datur cum quo agitur, solutum repetere potest, ut acadit in senatus consulte» do intcrccssionibus: ubi vero in odium eius cui debctur exceptio datur, perperam solutum non rcpctitur, vcluti si hliustamilias contra Macedonianum mutuain pccuniam acceperit et patertamilias tactus solvent, non

Unlike the exceptio senatus consult! Vellaeani, the defence under the senatus consultum Macedonianum was not granted m the interest of the person who had incurred the obligation (the defendant, i.e. the woman and the son in power respectively); its function was to thwart the creditor.¹⁵[926] [927] Thus, a son in power who accidentally paid back the loan after having become sui iuris was not allowed to recover the money.¹⁵⁹ Normally a person to whom a perpetual (as opposed to a merely temporary, dilatory) exceptio is available may reclaim what has been paid in error."¹"

Of course, a fortiori, deliberate ratification of the debt, once the son had ceased to be alieni iuris, was permissible too.

'""Marc. P. 12, 6. 40 pr.: "Qui exceptionem perpetuam habet, soluium per erroreni repetere potest." Cf.

^1M Ulp. D. 14, 6, 7, 16: "Si paterfamilias tactus solvent partem debiti, cessabit senatus consultum nee solutum repetere potest."

"¹² C. 4. 28, 7 (lust.). What if the father had agreed to the transaction, but the grandfather was still alive? This was the problem in lui. I). 14. 6, 14: "Fihum habeo et ex eo nepotem: nepoti meo credit uni est iussu patris eins: quaesitum est, an contra senatus consultum fieret, dixi, etumsi verbis senatus consulti hlii continerentur, tarnen et in persona nepotis idem servari debere: iussum auteni huius patris non etticere, quo minub contra senatus consultum creditum existimaretur, cum ipse in ea causa esset, ut pecuniam mutuam invito patre suo accipere non possit."

'™ Ulp. P. 14.6.7, 15. ^M

Ulp. P. 14. 6. 7, 13. "⁵

Ulp. P. 14. 6, 7. 12. ^M>

Ulp. D. 14, 6, 3. 4.

Scacv. II. 14, 6, 6.

committed by Macedo, not on the assumption that it was primarily aimed at the protection of irresponsible youth.

Was the senatus consultum Macedonianum, in accordance with its wording, applied only to loans of money or was it extended, by way of interpretation, to other transactions? Did it cover the filiusfamilias breakfasting every morning on nightingales bought on credit?'"* "Is autem solus senatus consultum offendit, qui mutuam pecuniam fiho familias dedit, non qui alias contraxit, puta vendidit locavit.""¹" The rationale is set out by Daube:¹⁷'¹

"A rihus tamihas was tree to squander all his prospective wealth, and more— provided he obtained the credit trom ordinary business men, in an honest manner. He might even stand surety tor a prodigal friend:¹"¹ that was not a dirty, underhand arrangement.... What: the senate was out to prevent or at any rate render harmless was the pure money loan from an usurer. It was this transaction which so easily led to crime.'"¹⁷'

On the other hand, of course, the parties could not be allowed to sidestep the provisions of the senatus consultum by simply disguising the loan. If a contract of sale had been entered into between the moneylender and the son in power, though the purpose of the transaction really was to effect a loan, the senatus consultum was held to apply.^{[928] [929] [930] [931]}

Even though the senatus consultum Macedonianum was closely linked to the entire system of patria potestas, it survived in Germany until the end of the 19th century.^{[932] [933] In Roman-Dutch law, on the other hand, its application was restricted to persons under the age of 25.171}

2.